CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 5 avril 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4667C756 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; text-align:left; page-break-inside:avoid } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s35010285 { width:59.35pt; text-indent:0pt; display:inline-block } .sA8D110E1 { width:190.13pt; text-indent:0pt; display:inline-block } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .sCA46C9B6 { width:204.78pt; text-indent:0pt; display:inline-block } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s681BE8C7 { width:183.27pt; display:inline-block } .s5C148630 { width:171.61pt; display:inline-block }     GRAND CHAMBER             CASE OF ZUBAC v. CROATIA   (Application no. 40160/12)                             JUDGMENT     STRASBOURG   5 April 2018       This judgment is final but it may be subject to editorial revision.   In the case of Zubac v. Croatia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Ganna Yudkivska,   Helena Jäderblom,   Luis López Guerra,   André Potocki,   Aleš Pejchal,   Faris Vehabović,   Ksenija Turković,   Síofra O’Leary,   Alena Poláčková,   Georgios A. Serghides,   Tim Eicke,   Jovan Ilievski,   Jolien Schukking,   Péter Paczolay, judges, and Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 12 July 2017 and 31 January 2018, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 40160/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Bosnia and Herzegovina, Ms Vesna Zubac (“the applicant”), on 30 May 2012. 2.     The applicant, who had been granted legal aid, was represented by Mr   I. Ban, a lawyer practising in Dubrovnik. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that she had not had access to the Supreme Court contrary to the requirements of Article 6 § 1 of the Convention. 4.     The application was initially allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). On 27 March 2015 the President of the First Section decided to give notice of the applicant’s complaint to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. On 1 September 2015, the Court changed the composition of its Sections (Rule 25 § 4). The present application was thus assigned to the newly composed Second Section (Rule 52 § 1). On 6 September 2016 a Chamber of that Section, composed of Işıl Karakaş, Julia Laffranque, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro and Georges Ravarani, judges, and Stanley Naismith, Section Registrar, gave judgment. The Chamber unanimously declared the complaint concerning the right of access to court under Article 6 § 1 of the Convention admissible and the applicant’s further complaints of a lack of fairness of the proceedings inadmissible. It held by a majority that there had been a violation of Article 6 § 1 of the Convention. The dissenting opinion of Judges   Lemmens, Griţco and Ravarani was annexed to the judgment. 5.     On 11 January 2017 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 6   March 2017 the panel of the Grand Chamber granted that request. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the final deliberations, Alena Poláčková, substitute judge, replaced Nona Tsotsoria, who was unable to take part in the further consideration of the case (Rule 24 § 3). 7.     The applicant and the Government each filed observations (Rule 59 §   1) on the merits of the case. The Government of Bosnia and Herzegovina were informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 §§ 1 and 4), but did not avail themselves of that right. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 12 July 2017 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   Š. Stažnik , Representative of the Republic of Croatia   before the European Court of Human Rights,   Agent , Ms   N. Katić , Office of the Representative of the Republic   of Croatia before the European Court of Human Rights, Ms   M. Konforta , Office of the Representative of the   Republic of Croatia before the European Court   of Human Rights,   Advisers ; (b)     for the applicant Mr   I. Ban , Lawyer,   Counsel .   The applicant was also present. The Court heard addresses by Mr Ban, the applicant and Ms Stažnik, and also replies by Mr Ban, Ms Stažnik, Ms   Katić and Ms Konforta to questions from judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1959 and lives in Bijela (Montenegro). 10.     On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract with F.O. and H.A. for the exchange of his house in Dubrovnik for a house in Trebinje (Bosnia and Herzegovina). 11.     Vu.Z. died on an unknown date between 2001 and 2002. 12.     On 14 August 2002 the applicant’s husband M.Z., who was a son of Vu.Z., represented by a certain M.Č. from Herceg Novi (Montenegro), brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) against F.O.’s heirs and H.A., seeking to have the contract for the exchange of the houses declared null and void and to obtain the possession of the house in Dubrovnik. M.Č. was a practising lawyer in Montenegro. 13.     M.Z. claimed that the contract had contained incorrect information with regard to the legal status of the house in Trebinje and that K.Z. had not had the necessary authorisation to sign such a contract. He further alleged that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also submitted that the difference in the values of the properties exchanged had been disproportionate in that the house in Dubrovnik was worth about 250,000-300,000 euros (EUR) and the house in Trebinje some EUR 80,000-90,000. Lastly, he stressed that it had been impossible for him to regularise his ownership of the house in Trebinje due to the irregularities in the contract. 14.     In his action, M.Z. indicated the value of the subject matter of the dispute (vrijednost predmeta spora) at 10,000 Croatian kunas (HRK) (approximately EUR 1,300 at the time). 15.     On 16 August 2002 the Dubrovnik Municipal Court (hereafter: “the Municipal Court”) invited M.Z. to clarify the circumstances relating to his legal representation, in particular by providing a valid power of attorney, and to provide some further documents concerning his claim. 16.     A first hearing in the case was held on 3 March 2003. At that hearing, the Dubrovnik Municipal Court instructed M.Z. to provide documents attesting to his standing as heir of Vu.Z. 17.     Further to this hearing, the parties exchanged pleadings and documentary evidence requested by the Municipal Court. 18.     At a hearing on 13 December 2004 the respondents insisted that the issue of M.Z.’s representation by M.Č. needed to be clarified. The latter stated that he would no longer represent M.Z., who would instruct a lawyer in Croatia to represent him. 19.     A further hearing was held on 1 February 2005. M.Z. was represented by I.B., a lawyer practising in Dubrovnik (who is also representing the applicant in the current proceedings before the Court). At the hearing, the lawyer I.B. corrected some clerical omissions in the civil action and reiterated the arguments for declaring the contract null and void as set forth in the civil action, namely that the contract had been signed under duress, that the legal status and ownership of the house in Trebinje had not been properly stated and that there had been a disproportionate difference in the value of the properties. In reply to a question by the trial judge concerning the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10 and 13 above), I.B. stressed that he did not consider that power of attorney to be invalid as an original had been deposited in the relevant register. The respondents challenged the arguments advanced on behalf of M.Z. on the basis that there were no grounds for declaring the contract null and void. 20.     At a hearing on 6   April 2005 the lawyer I.B. explained that following the termination of the hearing he would no longer represent M.Z., who would in future be represented by the applicant (his wife). At the same hearing, I.B. submitted two documents. In the first he requested that the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10, 13 and 19 above) be examined on the grounds that there were doubts as to its authenticity. In the same document he asked that a preliminary measure (injunction) be issued preventing any disposal of the property in dispute. In the second document he explained that the value of the subject matter of the dispute had been set too low, and indicated the new value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). 21.     At the same hearing, the respondents contested the suggestion that there was any issue with the validity of the power of attorney, pointing out that at a hearing held on 1 February 2005 I.B. had not challenged that validity. The respondents also opposed the request for an injunction. Finally, they objected to the change of the value of the subject matter of the dispute, arguing that it had been increased only in order to enable the claimant to lodge an appeal on points of law. 22.     After hearing the parties’ pleas, the Municipal Court questioned the respondents as witnesses. Following their questioning, at M.Z.’s request the Dubrovnik Municipal Court adjourned the hearing in order to obtain the original of the impugned power of attorney and reserved its decision on the request for an injunction. No decision was adopted with regard to the change of the value of the subject matter of the dispute. 23.     On 25 April 2005 the Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 190 at the time) for bringing the civil action. It assessed the fees by reference to a value of the dispute set at HRK 105,000. 24.     At a hearing on 13 September 2005 the Municipal Court examined the materials available in the file, following which it concluded the hearing. 25.     By a judgment of 27 September 2005 the Municipal Court dismissed M.Z.’s claim and the request for an injunction. It found that despite repeated attempts to summon M.Z. to the hearing, he had failed to appear without providing any valid reasons. Also, in the light of the parties’ arguments, including on the issues regarding the power of attorney on the basis of which the contract had been concluded, it found no grounds to doubt the validity of the contract. The Municipal Court ordered that M.Z. was to bear all the litigation costs, including the expenses of the opposing parties, in the amount of HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings by reference to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows: “... [T]he costs of the proceedings were awarded to the respondents [and assessed] according to ... the value of the dispute indicated by the claimant (HRK   105,000   ‑   (page 58 [of the case-file]) which this court accepted.” 26.     On 12 December 2005 the first-instance court ordered M.Z. to pay court fees of HRK 1,400 for the judgment. It also assessed these fees by reference to a value of HRK   105,000 for the dispute. 27.     By judgment of 1 October 2009 the Dubrovnik County Court ( Županijski sud u Dubrovniku ; hereafter: “the County Court”) dismissed an appeal by M.Z. and upheld the first-instance judgment. The relevant part of that judgment reads as follows: “In view of the fact that the [first-instance judgment] is challenged in its entirety, thus including also the decision on the costs of the proceedings, and although the appeal is not specified in that respect, [it is to be noted that] the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.” 28.     On 24 May 2010 M.Z. lodged an appeal on points of law ( revizija ) with the Supreme Court challenging the findings of the lower courts. 29.     On 7 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir. 30.     By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris , finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000 (approximately EUR 13,500 at the time). It held that the applicable value of the subject matter of the dispute was that set out in the claimant’s statement of claim in the civil action. The relevant part of that decision reads as follows: “With regard to section 40 (3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises concerning jurisdiction over the subject matter, the composition of the court, the type of proceedings, the right to lodge an appeal on points of law, the authorisation for representation or the costs of proceedings, the court shall, ex officio or upon the objection of the respondent, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the first session of the main hearing before the respondent has begun litigation on the merits of the case, quickly and in an appropriate manner verify the accuracy of the value specified and, by a decision against which no separate appeal is allowed, determine the value of the subject matter of the dispute. It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute, ex officio or if an objection is raised by the respondent, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits. In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas. Later on, at the hearing of 6 April 2005, the claimant’s representative indicated the value of the subject matter of the dispute at 105,000 Croatian kunas considering that it had been indicated too low in the civil action. However, the claimant did not amend the claim at the same time. The first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40 (3) of the CPA [Civil Procedure Act] were not met. It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.” 31.     By a decision of 10 November 2011 the Constitutional Court summarily declared a constitutional complaint by the applicant, complaining, inter alia , of a lack of access to the Supreme Court, inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 1.     Constitution 32.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 5/2014; “the Constitution”) read as follows: Article 29 “In the determination of his or her rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 119 “(1)     The Supreme Court of the Republic of Croatia, as the highest court, secures consistent application of law and equality in its application. ...” 2.     Civil Procedure Act 33.     The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008 and 123/2008), as in force at the material time, provided: Establishing value of the subject matter of the dispute Section 35 “(1)     When the value of the subject matter of a dispute ( vrijednost predmeta spora ) is relevant for establishing jurisdiction, the composition of the court, the right to lodge an appeal on points of law and in other cases provided for in this Act, only the value of the main claim shall be considered as the value of the subject matter of the dispute. ...” Section 40 “... (2)     ... when an action does not concern a sum of money, the relevant value shall be the value of the subject matter of the dispute ( vrijednost predmeta spora ) indicated by the claimant in the civil action ( u tužbi ). (3)     If, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises over jurisdiction concerning the subject matter, the composition of the court, the type of proceedings, the right to lodge an appeal on points of law, the authorisation for representation or the costs of proceedings, the court shall, ex officio or upon the objection of the respondent, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the first session of the main hearing before the respondent has begun litigation on the merits of the case, quickly and in an appropriate manner verify the accuracy of the value specified and, by a decision against which no separate appeal is allowed, determine the value of the subject matter of the dispute. ...” Representation Section 89 “(1)     Parties may undertake procedural actions either personally or through representatives, but the court may invite a party who has a representative to express himself or herself in person before the court about the facts to be established in the proceedings. (2)     A party who is represented may always appear before the court in person and give statements alongside with his or her representative.” Section 89a “(1)     Only an attorney may represent a party as a representative, if the law does not provide otherwise. (2)     A party may be represented by a person as a representative who is in an employment relationship with him or her if he or she has full legal capacity. (3)     A party may be represented by a relative in blood in the [descendent or ascendant] line of kinship, brother, sister or married partner if he or she has full legal capacity and if he or she is not practising law without a licence.” Section 90 “(1)     If a person appears as a representative who cannot be a representative according to the provisions of section 89a of this Act, the court shall prevent that person from further representation and inform the party of this. ... (3)     If it is established that a representative who is not an attorney is not capable of carrying out this duty, the court shall caution the party of the consequences which may occur as a result of inadequate representation.” Content of civil actions Section 186 “(1)     A civil action must contain a specific claim regarding the main claim and incidental claims, the facts on which the plaintiff bases the claim, evidence to support these facts and other information which must be enclosed with every submission (Article 106). (2)     When the jurisdiction, composition of the court, type of proceedings, the right to lodge an appeal on points of law, authorisation for representation or the right to payment of costs depends on the value of the subject matter of the dispute, and the subject of the claim is not a sum of money, the plaintiff shall indicate in the civil action the value of the subject matter of the dispute. ...” Amendment of a civil action ( preinaka tužbe ) Section 190 “(1)     The plaintiff may amend the civil action until the main hearing is closed. (2)     After the service of the civil action on the respondent, the assent of the respondent is required for amendments of the civil action; but even if the respondent objects, the court may allow the amendment if it deems that it would be expedient for the final resolution of relations between the parties. (3)     It shall be deemed that the respondent has agreed to the amendment of the civil action if he or she begins litigation based on the amended civil action without previously objecting to the amendment. ...” Section 191 “(1)     Amendment of the civil action is the amendment of the identity of the civil claim, increase of the existing claim or lodging another claim in addition to the existing one. ... (3)     The civil action is not amended if the claimant altered the legal basis of the civil claim, if he or she decreased the civil claim or if he or she changed or corrected certain statements, so that the civil claim is not altered.” The main hearing Section 297 “(6)     When this Act provides that the party may ... take [a] procedural action until the respondent at the main hearing has begun litigation on the merits of the case, such ... [an] action may be taken until the respondent does not finish his or her reply to the [claimant’s] action.” Appeal on points of law Section 382 “(1)     The parties may lodge an appeal on points of law against a second-instance judgment: 1.     if the value of the dispute in the contested part of the judgment exceeds HRK   100,000 ... (2)     In cases where parties may not lodge it under the provision of paragraph 1 of this section, the parties my lodge an [extraordinary] appeal on points of law against a second instance judgement if the decision in the dispute depends on the resolution of a substantive or procedural question which is important for securing a consistent application of the law and the equality of citizens ...” Section 385 “(1)     The second-instance judgment, referred to in section 382(1) of this Act, can be challenged by lodging an appeal on points of law on the following grounds: 1.     for the fundamental error in the proceedings [before the first-instance court] ...; 2.     for the fundamental error in the proceedings before the second-instance court; 3.     for the errors in the application of the relevant substantive law. ...” Section 392 “An [inadmissible] appeal on points of law shall be rejected by the [Supreme Court] ...” Section 393 “The [Supreme Court] shall dismiss the appeal on points of law by a judgment if it finds that the reasons on which it is based are not met.” Section 394 “(1)     If it finds [the relevant] procedural flaws ... the [Supreme Court] court shall by a decision quash, entirely or partially, the judgment of both the second-instance and the first-instance court or only the judgment of the second-instance court and shall remit the case for fresh examination ... “ Section 395 “(1)     If [the Supreme Court] finds that the substantive law had not been correctly applied, it shall accept the appeal on points of law and amend the impugned judgment ...” 3.     Court Fees Act 34.     The relevant provisions of the applicable Court Fees Act ( Zakon o sudskim pristojbama , Official Gazette nos. 74/1995, 57/1996, 137/2002 and 26/2003 – consolidated version) read as follows: Section 14 “(1)     The court will exempt from payment of court fees a party that cannot pay it due to his or her general financial circumstances without damaging consequences for the necessary maintenance of him- or herself and his or her family. ... (3)     In rendering the decision the court will consider all circumstances, including value of the subject matter of the dispute, number of persons that the party supports, income of the party and his or her family.” Determining the value [of the subject matter of the dispute] for the purpose of court fees Civil proceedings Section 25 “(1)     The value of the subject matter of a property dispute concerning the ownership of an immovable property shall be determined in accordance with the market value of the property at issue ...” Proceedings for the payment of the unpaid fee Section 38 “(1)     Against a notice, order or warning for the payment of a fee, the party may, within the period of three days from the day when he or she was informed thereof or when the [notice, order or warning] has been served on him or her, lodge an objection to the first-instance court. ...” Return of the court fee Section 43 “(1)     A person that paid a fee which he or she did not have to pay at all, or paid it in excess from the amount prescribed, as well as a person that paid a fee for a court action that was never performed, has the right to a return of the fee. ...” Section 44 “(1)     A request for the return of the fee shall be submitted to the first-instance court within the period of ninety days from the moment when the fee was wrongly paid ... (2)     The return of the fee cannot be claimed upon the expiry of a period of one year from the moment when the fee was paid.” B.     Relevant domestic practice 1.     Supreme Court (a)     Case-law relevant to the indication/amendment of the value of the subject matter of the dispute 35.     In Decision no. Rev-2836/1990 of 27 January 1991, the Supreme Court found the following: “The objection in the appeal on points of law that the immovable property would have a higher value of the one indicated in the civil action and that the lower courts’ decisions are therefore unlawful cannot be accepted because, even assuming that [this] argument concerning the value of the immovable property is correct, that is not relevant at this stage of the proceedings. This is because the value of the subject matter of the dispute was indicated by the claimant himself (that is his right) and this represents the relevant value of the subject matter of the dispute (section 40 (2) of the Civil Procedure Act [hereafter: CPA]). The court accepted without verification the indicated value of the subject matter of the dispute (and it was allowed to [verify the value] until a certain stage of the proceedings – preliminary hearing or the main hearing but before the respondent started litigating the case) and the respondent did not object to the indicated value of the subject matter of the dispute in her reply to the civil action and at the preliminary hearing she started litigating the case. Therefore, upon the conclusion of the preliminary hearing, the value of the subject matter of the dispute could no longer be determined by the parties or by the court. ... The finding [of the lower court] that the indicated value of the subject matter of the dispute does not necessarily have to correspond to the value of the property in dispute is also correct. ...” 36.     The relevant part of Decision no. Rev-62/1994-2 of 23 February 1994 reads: “In the course of the proceedings, the civil action was expanded so as to include new respondents, however, the mere expansion of the civil action and the claim which remained the same in relation to all respondents did not create a legal authorisation for the claimants to change the value of the subject of the dispute, because the respondents within the meaning of section 196 paragraphs 2 and 3 CPA, which the expanded civil action included with their consent have to receive the litigation in the state in which it is in at the point of their entry into it, and given that the claimants were not authorised to change the value of the subject of the dispute because there was no objective change of the claims (and at the time the respondents entered into the dispute, the value of the subject of the dispute was still 30,000.00 dinars [currency formerly used in Croatia]), that value remains the only relevant value for the issue of the admissibility of the appeal on points of law in this legal matter. ... [A]n appeal on points of law in this legal matter would be admissible if the set value of the subject matter of the dispute for the claims exceeded the amount of 50,000.00 dinars - HRD, however, given that the set value of the subject of the dispute amounted to 30,000.00 then dinars - HRD, the value of the subject of the dispute set in such a way, regardless of the issue of the divisions of the claim in relation to all parties in these proceedings, indicates the inadmissibility of the appeal on points of law.” 37.     In Decision no. Rev-538/03 of 4 March 2004 the Supreme Court stated: “The specification of the claim and the expanding of the claim to a new respondent ... is not an objective amendment of the civil action within the meaning of section 191 CPA and thus the admissibility of the appeal on points of law is determined on the basis of the value of the subject matter of the dispute indicated in the [initial] civil action ...” 38.     The relevant part of Decision no. Rev-20/06-2 of 11   April 2006 provides: “The claimant has, within the meaning of section 40 paragraph 2 CPA, set the value of the subject matter of the dispute at HRK 10,000.00 so, even though the respondents objected to the set value of the subject matter of the dispute, the first instance court did not act in accordance with section 40 paragraph 3 CPA and set the value of the subject matter of the dispute with a [separate] decision. However, in a submission of 23 April 2001 ... the claimant set the value of the subject matter of the dispute at HRK 30,000.00, but since she did not amend the civil action at the same time, she was not authorised subsequently to change the value of the subject matter of the dispute that has been set in the civil action. It is therefore taken that the value of the subject of the dispute in this case is HRK 10,000.00.” 39.     In Decision no. Rev-694/07-2 of 19 September 2007 the Supreme Court stated: “According to the provision of section 40 paragraph 3 [CPA] which was in force at the time the civil action was lodged on 1 October 1996 and at the time the first instance judgement was rendered on 5 June 2001 and which had to be applied, the value of the subject of the dispute when the claim does not refer to a monetary sum could be verified and changed by the court only at the preparatory hearing, or if one is not held then at the first trial hearing before the commencement of the trial on the main matter. Contrary to the stated, in this specific case the claimant set the new value of the subject of the dispute at HRK 100,000.00 with a submission of 21 August 2000, for which she was not authorised, and even the court issued a separate decision on 2   March 2007 ... setting the new value of the subject of the dispute at HRK 100,000. Given that, on the basis of the above, the value of the subject of the dispute was tied to [the initially set value of] HRK 1,000, further actions of the claimant and the judge regarding the changes to the value of the subject of the dispute do not have procedural legal effect.” 40.     The relevant part of Decision no. Rev-798/07-2 of 5 February 2008 reads as follows: “The fact that the Zagreb Municipal Court at the trial hearing of 21 February 2003 determined that the value of the subject of the dispute amounted to HRK 150,000.00 meant that the court acted contrary to section 40 paragraph 3 CPA, which states that the court shall ex officio or following an objection by the respondent, no later than at the preparatory hearing, or if one is not held then at the first trial hearing, before which the respondent has begun litigation on the merits of the case, quickly and in the most appropriate manner, examine the accuracy of the value set and by a decision against which no separate appeal is permitted, determine the value of the subject of the dispute. Therefore, after the preparatory hearing was held in this case, the first instance court no longer had the ability to determine the value of the subject of the dispute, and it is therefore considered that the value in this legal matter is [the initially set] HRK   2,900.00. Since the value of the matter of the dispute does not exceed HRK 100,000.00, the appeal on points of law is inadmissible...” 41.     The relevant part of Judgment no. Rev-320/2010-2 of 8 September 2011 provides: “... [T]he first-instance court did not determine the value of the subject of the dispute following an objection of the respondent at the first trial hearing before which the respondent has begun litigation on the merits of the case ... Therefore, the first instance court did not act within the meaning of section 40 paragraph 3 CPA, which is why the value of the subject of the dispute became established, since the claimant set the value at HRK 101,000.00 in her civil action, regardless of the fact that the first instance court decided on the value of the matter of the dispute after the trial was concluded following the objection of the respondent. According to section 40 paragraph 3 of the CPA, a court may ex officio or following an objection of the opposing party, if it doubts the accuracy of the set value of the subject of the dispute, verify and determine the value of the subject of the dispute, but only at the preparatory hearing or if one is not held then at the first trial hearing, before the respondent has begun litigation on the merits of the case. That means that after this the value of the subject of the dispute set in the civil action cannot be changed by the court or the claimant, which is why the value of the subject of the dispute became established ...” 42.     In Decision no. Rev 648/10-2 of 23 January 2013 the Supreme Court held the following: “The court did not decide on the respondent’s objection [concerning the value of the subject matter of the dispute set out in the civil action] and in that respect the respondent did not appeal against the first-instance judgment. Therefore, according to the claim for the issuance of a proprietary document, the value of the subject of the dispute is HRK 10,000.00, the value set by the claimant in the civil action.” 43.     The above-outlined approach of the Supreme Court was followed in other cases, in particular: Rev-2323/90 (24 January 1991); Rev-538/03 (4   March 2004); Gzz-140/03 (21 April 2004); Revr-507/03 (2 June 2004); Revt-72/07 (4 July 2007); Rev-1525/09-2 (8 June 2011); Rev-287/11-2 (14   December 2011); Rev-X-848/14 (24 February 2015); and Rev-x-916/10 (8 April 2015). (b)     Case-law relevant to the amendment of a civil action 44.     The relevant part of Decision no. Rev-2015/94 of 4 July 1996 provides: “The appellant is correct when he argues that the first-instance court committed a fundamental breach of the civil procedure ... when, following the claimant’s increase of the existing claim at the hearing of 23 March 1993 at which the respondent was not present, it concluded the proceedings instead of adjourning the hearing and sending the hearing record to the respondent. The increase of the existing claim within the meaning of section 191 paragraph 1 CPA represents an amendment of the civil action and the court was required, under section 190 paragraph 7 CPA, in the case of an amendment of the civil action at the hearing, to [proceed as noted above]. Otherwise [the court] commits a [fundamental breach of procedure] because such an unlawful conduct prevented the respondent to argue his case before the court.” 45.     In Decision no. Rev-x-1134/13 of 3 March 2015 the Supreme Court held as follows: “By facts we consider everything which really [existed] in history or at present (events, activities, conditions, situations, opinions, expressions of will, positions, etc.) by which the claimant determined the factual basis of his or her claim, whereas the legal basis [of the claim] is a legal qualification of the disputed legal relationship as well as legal rules which justify the request for the court to adopt a particular decision. Out of the circumstances under section 7 paragraph 2 CPA ... with regard to the facts the court is bound by the disposition of the parties. It is not allowed to determine the facts which the parties did not invoke, as long as it can base its decision only on the factual basis relied upon by the parties during the proceedings ... Through the exposition of facts and indication of a claim the claimant substantiates the subject matter of the dispute and thus the substance of the court judgment is determined by the substance of the legal basis and the applicable legal norm. The court determines the matter within the limits of the claim made during the proceedings ... and the claim would be surpassed if the court would base its decision on different factual basis from the one relied upon by the claimant. Moreover, the factual basis on which the claim is made is important for the identification of the dispute and, in that connection, for the application of the rules on amendment of a civil action (section 191 CPA). On the other hand, the claimant is not obliged to indicate the legal basis of its claim, [and] in case he or she indicates [the legal basis], the court is not bound by it and in itself [such indicated legal basis] is not relevant for the identification of the subject matter of the dispute ... and, in that respect, the application of the rules on amendment of a civil action. When it comes to the objective amendment of an action, this court considers that, within the meaning of section 191 CPA ... an amendment takes place also when a generically determined claim is based on a relevantly different factual basis (different set of facts) from that which previously served as a basis of the claim, even if the claim has not been formally amended, or if [the particular elements of the factual basis] were added, amended or reduced from the [existing] elements of the factual basis so that the new factual set of circumstances leads to [the conclusion that] the identity of the action has been changed. In the case at issue, until he has amended his claim, the claimant has based his claim for payment of a sum of money only on the basis of the fact that the lease has not been paid (performance of the contract), while during the proceedings he changed the factual basis of his claim for the [particular] period claiming damages for the loss of profit. This, contrary to what the second-instance court asserted, is not a change of the legal basis nor is it [clarification] of the claim within the meaning of section 191 paragraph 3 CPA or reliance on a new evidence but rather a new set of factual circumstances which objectively lead to the change in the identity of the claim. In particular, this is not the change of the legal basis because it does not concern only an amendment or the making of additional arguments concerning the legal qualification of the claim but the setting out of the new factual basis for the responsibility for the damage caused on which ... the claimant bases his claim. The possibly [different] legal qualification simply serves to underline the more precise distinction of the new factual basis [from the old one]. This is not [a clarification] of the previous arguments because it does not concern a correction, clarification or supplement of the previous factual basis but a different set of facts which make out the new factual basis of the claim for the adoption of the court decision unrelated to the previous factual basis. Likewise, this is not new evidence because the [new] arguments in themselves represent a concrete factual basis on which a court decision can be based ...” 2.     Constitutional Court 46.     In Case no. U-III-1041/2007, the Constitutional Court examined a decision of the Supreme Court (Rev-706/06) declaring an appeal on points of law inadmissible on the grounds that the lower courts had erroneously conducted the proceedings under the procedural rules related to the standard civil proceedings, for which the ratione valoris threshold for an appeal on points of law was HRK 100,000, whereas they should have treated the case as a commercial dispute for which the ratione valoris threshold was HRK   500,000, which had not been met in the appellant’s case. 47.     By decision of 24 June 2008 the Constitutional Court found such a decision of the Supreme Court contrary to the right to a fair trial under Article 29 § 1 of the Constitution and thus quashed the Supreme Court’s decision and ordered a re-examination of the case. The relevant part of the Constitutional Court’s decision reads as follows: “It is unacceptable ... that the appellant’s appeal on points of law was declared inadmissible because the value of the contested part of the final judgment did not exceed HRK 500,000 when the whole proceedings before lower courts were conducted under the rules of ordinary civil proceedings while, on the other hand, the admissibility of the appeal on points of law was determined on the basis of the rules of [commercial disputes] under which the proceedings have not in reality been conducted. ... When deciding on the appellant’s appeal on points of law, the Supreme Court has taken, for the purpose of its assessment of the conditions for lodging an appeal on points of law, a legal position contrary to the one which the appellant could have rightly expected in view of the proceedings conducted before the lower courts. The Constitutional Court therefore finds that the Supreme Court breached the procedural rules concerning the admissibility of an appeal on points of law to the appellant’s detriment and therefore breached the right to a fair trial under Article 29 § 1 of the Constitution.” III.     INTERNATIONAL LAW A.     International Covenant on Civil and Political Rights 48.     Article 14 of the International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, reads as follows: “1. All persons shall be equal before the courts and tribunals. In the determination of ... his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ...” B.     American Convention on Human Rights 49.     The relevant provisions of the American Convention on Human Rights, 22 November 1969, read as follows: Article 8. Right to a Fair Trial “1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, ... for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature. ...” Article 25. Right to Judicial Protection “1.     Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. ...” C.     African Charter on Human and Peoples’ Rights 50.     The relevant provision of the African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), provides as follows: Article 7 “1.     Every individual shall have the right to have his cause heard. This comprises: a.     the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; ...” IV.     EUROPEAN UNION LAW 51.     The relevant part of the Charter of Fundamental Rights of the European Union, OJ 2012 C 326/391, provides as follows: Article 47. Right to an effective remedy and to a fair trial “... Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. ...” THE LAW I.     PRELIMINARY ISSUES A.     The Government’s preliminary objection 52.     In their written submissions the Government invited the Court to declare the application inadmissible, without further elaborating on this request. 53.     The applicant asked the Court to reject the Government’s submissions. 54.     The Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Muršić v. Croatia [GC], no. 7334/13, § 69, ECHR 2016; with further reference). 55.     The Court sees no need to examine whether the Government are estopped under Rule 55 of the Rules of Court from making the said objection since it finds in any event that the objection is unsubstantiated and should therefore be dismissed